Today, I shot the interior and exterior of a large, popular Brew Pub here in Seattle. I was hired by the architect who just completed a $4 million remodel of the restaurant. The images are to be used by the architect as part of their portfolio and marketing. As we were leaving, he said he thought he might be nice and let the restaurant use the photos he hired me to shoot. What would be your recommended reaction?

My reaction would be:

That’s great, I would be happy to talk to the owner and write a license agreement for their use too.

In short, you own the photos. You’ve licensed the photos for a specific use by the architect and you expect to license the same photos to as many other parties as possible. Each licensee will sign a license agreement and pay a licensing fee that depends on their particular use. The video above describes this multiple licensee relationship.

Hopefully, you already have a license agreement with the architect that defines the use that they will make of the photos. But it sounds like you may not have a well-defined license agreement with the architect.

14 Responses to “Photo Licensing Explained”

Alan, register your images on Monday or before you deliver them to your client if you haven’t already. Hopefully, you haven’t signed a contract with the architect that assigns them the copyright or a license that allows them to resell the images. The cost to register is $55 for all of the images. Just register everything, don’t bother to cull or only submit a few. If you register before the images are published, it’s much simpler and shouldn’t take you more than a hour to walk through the process. The next time all of your information will be in the system and you can just click “add me” on many of the pages and be able to do a registration in 10 minutes or so.

The use is different for each of these cases. The pub’s usage is likely going to be more vigorous and the images will appear in many types of media. The architect will likely have a book and/or prints in his office and images on his web site. Maybe he’ll take out an ad somewhere, maybe not. This will mean that the images will be more valuable to the pub and therefore, worth charging more money. Even if you charge the same fee to both, that’s 2x the money for the job. You aren’t working in a field where it’s typical to get paid on a time + materials basis. Creative work is often priced according to the value to the client of the work. A Rolling Stones CD with the song “Start Me Up” would be around $11.99 new. Microsoft paid millions to use the song for the Window 95 roll out campaign. The difference is value and usage, not the cost to make the recording or write the song.

The architect should already understand Copyright and licensing. He wouldn’t be too happy if the pub owner made a scan of the drawings the architect did for the building and started selling them or giving them away. The design and drawings belong to the architect if he didn’t assign the Copyright to the pub owner or was working under a “Work Made for Hire” contract. If the architect was hired to design a building for Disney, he’d be nuts to charge the same money as he received for the pub.

What is your relationship with the Architect? Has he already granted to the restaurant the permission that wasn’t his to give? Is this the first job with the architect of potentially many? I don’t think topics this, no matter what copyright law says, lend themselves to easy cut & dry answers. At least if you’re in business. And want to grow your business.

If yes on any of the above then personally I’d be be pretty darn soft with the architect- maybe a *very polite* mention about licensing, and something about next time… (and of course this time you’d want photo credit).

@George, with the very highest respect to you, I really disagree. I think long-term success, in today’s environment, depends on flexibility and a sharp eye towards the endgame. There’s some pretty talented folks out there giving stuff away to get noticed. And some pretty compelling stories about how that’s worked for them…

As far as registering images for copyright, if you register all of your images immediately (SOC), and then edit some of them – are the final edited images considered a new image? Should those also be registered, or would they be covered under the original unedited image?

Don’t assume the architect is aware of copyright as it pertains to photographers. In my experience, they are aware of their own rights, but they can be quite naive as to the rights of other creators. I’ve had quite a few who believe (like realtors do) that if they’ve paid for their copy, they own the whole ball of wax, which is really odd considering the the similarities in terms of intellectual property.

Dave, I don’t quite understand why you would disagree with the importance of registering your copyright.

It doesn’t preclude you from being flexible with clients, or licensing, or give everything away if that’s how you think you will achieve fame and fortune. What it does do though, is give you the ability to actually control who uses what should you chose to do so.

@George I don’t think I did a very good job reading your reply, sorry. Now that I do, I see that much of it recommended registering the photos. I don’t disagree with that at all, in fact I cannot speak to it – since I’ve never yet registered a photo.

I think in scenarios like Alan described it may not have been appropriate (in a business relationship sense) to stop the conversation on their way to the parking lot to teach or enforce licensing details – Particularly if there’s any suspicion the architect has already volunteered them to the restaurant at that point (likely is my guess). And likely too, as Larry mentioned, is that licensing hasn’t been clarified at that point (otherwise why would we even be having this conversation)?

The time for the ‘tough conversations’ is before the shoot. Otherwise there’s nobody to blame but yourself. So Alan should pony-up and take the hit: Politely mention a ‘next time’ scenario and see if he can get name on them.

I’m barely more than 2 years into this. Your amazing photos prove it’s exactly the opposite for you. But from my ignorance I’m fairly certain this is a relationship based business. Why spank the architect for what’s really your mistake? Sometimes what’s right, really isn’t the right thing to do

I see what Dave Spencer is trying to say now. However, assuming that Alan has indeed not adequately informed his client in writing before undertaking the commission, I would still suggest discussing the matter with the architect to see what representations, if any, they have made to other parties regarding the photos. Some careful judgement and diplomacy would be warranted, but that does not necessarily mean giving up any of your rights to earn additional income from selling usage rights to any other parties. If you have good sales and negotiating skills, try to put those to use. If you don’t, get some for the future. Otherwise you risk being at a competitive disadvantage. Such skills will not get you out of every jam, but they sure can help sometimes. Sometimes you just have to fall on your sword though.

It’s a very easy conversation to have with the architect. If somebody wants to use his pub design to build one somewhere else, he would want to sell an additional license for those plans rather than having his original customer just had over a copy. The same thing goes for the photos. The architect would be killing the photographer’s chances of selling images to the pub owner.

It’s isn’t very clear if there were contracts involved in any of this. It’s a good idea to always have a contract in place that specifies what is being sold, how it’s to be paid for and who will be liable for what if something doesn’t go right. The contract should also include the licensing terms as an addendum to the main body. An attorney reviewed contract is the best, but a plain language contract is better than nothing and may be perfectly fine to use on jobs under a certain (small claims limit) amount of money. If anybody is scared off by agreeing to a contract, it might not be a good idea to be doing business with them. Contracts should be negotiable to a certain extent, balanced and fair to both parties. I don’t use a contract with my RE clients as the dollar amounts are very low and not worth pursuing in court, but I do sit down with them and talk about Copyright before I do the first job for them and include my licensing text on invoices and quotes. I also provide them with my terms of service which is not a contract, it’s a statement of how I do business and what I might charge for things like cancellations and lates. If I were to be hired by a large firm for a contract worth a significant amount of money and will take lots of time, effort and expenses on my part, I will have an attorney draw up a contract since I can be sure that the other side will want to use their own contract prepared by their own attorney and if they consider mine, will have an attorney review it before allowing it to be signed.

I don’t like the argument for appeasement. In this case the client has stated clearly that he intends to do something with the photos that Alan doesn’t wish to grant permission for them to do even before the images are delivered. Personally, I wouldn’t let that slide. I would sit down with the client and let them know that the transfer of the images to another party wasn’t part of the deal whether spoken about or not and using the argument that I stated above, try to come to some fixed licensing terms even though it’s rather late in the process. If I was countered with “I paid for them, I’ll do whatever I want with them”, I’d have to say, I’m sorry, but I will not be delivering the images to you and will refund your money. The air might turn blue or the client might sigh and agree to some licensing terms in good faith. If the client storms off in a huff, the pub may still like to purchase a license to use the images which could mean having the funds to refund the architect and a chance to be more formal in presenting the license terms to the pub owner so they know it would be bad to give them to the architect.

Maybe the architect will want more photography in the future, maybe they’ll move to another state next month and will find another local photographer for new work. Do you allow them to take advantage of you today for the possibility of more work in the future? The next time around when you present them with a more formal agreement, will that architect opt to hire somebody else that isn’t putting any restrictions on usage? Polite? Yes. Imitate a door mat? No.

@ Lauren – Just doing basic edits to the images would not warrant registering the images again. Here is an excerpt from the FAQ section at http://www.copyright.gov: “You may make a new claim in your work if the changes are substantial and creative, something more than just editorial changes or minor changes. This would qualify as a new derivative work.”

@Ken – There is no reason why Alan needs to register the images immediately. As soon as he delivers the images to his client that would be considered published work Published work is defined as “Under copyright law, publication is the distribution of copies of images to the public by sale or other transfer of ownership or by rental, lease, or lending, i.e. limited license). ” Since they are published he has 3 months from the first publication date to be eligible for full protection of the Copyright Law.

@Kerry, The reason I emphasized registering the images before delivery is that they can be registered as unpublished and it’s a simpler process if he’s never registered images before. Once he delivers the images, he isn’t going to know when the architect posts the images online or puts prints on display somewhere.